The facts leading to the institution of the present writ petition are that the Government of India in the year 1878 granted lease of 2000 Acres of waste land in District Montgomery (presently District Sahiwal) to Shahzada Nadir son of Shah Shuja-ul-Mulk the King of Kabul who was grand son of Ahmad Shah Abdali vide letter dated 28th August 1877. A regular lease-deed was executed between the parties on 1.7.1877 copy of which has been placed on the file as Annex B. Shahzada Nadir surrendered his 2000 Acres land in District Montogomery and in exchange he was granted lease of 182 Acres of waste land in Rakh Bangah of Tehsil and District Lahore vide letter dated 10.11.1890 and this subsequent grant was also on the same terms and conditions as were stipulated in lease-deed Annex B. The subsequent lease deed was executed between the parties on 30.11.1891 copy of which has been placed as Annex C. It was stipulated in the lease-deed dated 30.11.1891 (Annex-C) that the proprietary rights in the land shall be granted under Part V, Class II in terms-- "That if during term of this lease or on its expiration the Government shall resolve to sell the proprietary rights in the suit land, the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner Lahore."
2. In the lease-deed it was also stipulated that Shahzad Nadir during his life term and his one generation of legitimate male heirs will hold the lease free of revenue and a nominal amount of Rs, 250/- per year was fixed by the Government as annual lease money of the total land of 182 acres payable after the expiry of revenue free period of the lease. During the lifetime of Shahzada Nadir and after his death his male legal heirs all long remained in possession of the land and they brought the waste land under cultivation and developed it at huge expense and hard labour in the hope of getting proprietary rights. Sahibzada Ashraf Durani the petitioner being the only grand son of Shahzada Nadir applied for the grant of proprietary rights which was considered by the board of revenue firstly on executive side and later on judicial side by way of R.O.R. No, 2192 of 1982 decided on 16.6.1983 by Mr. S.M. Nasim then Member (Colonies) Board of Revenue. He had held that the petitioner was not entitled for grant of ownership as a matter of right and he however, directed that in view of the long standing possession and development of the lease land by the petitioner and his predecessors the petitioner be granted proprietary rights of 12% acres only under Government Policy vide order dated 166,1983 (Annex D). Aggrieved by said order, the petitioner then approached States and Frontier Regions Division, Government of Pakistan (SAFRON) successor of Secretary to State Government of India which had ordered the grant of proprietary rights to the petitioner. The Law and Justice Division of Government of Pakistan also endorsed the said order vide letters dated 26.1.1993 and 20.5.1993 copies of which are (Annex E and F), in which it had been stipulated that the lease document was self-contained in law and a further coverage of Government Grants Act 1895 was provided, which made it completely independent of application of any other law in this regard.
Only the functional responsibility was entrusted to the Government of Punjab through Board of Revenue Punjab within the framework of law prescribed on the subject and thus it being a special case of special law was dealt accordingly by the SAFRON being successor of Secretary of State Government of India "in council".
3. In the meanwhile the petitioner challenged the order of Member (Colonies) Board of Revenue dated 16.6.1983 by filing Review Petition No, 131 of 1992 which was heard by Dr. Imtiaz Ahmad Senior Member (Colonies) Board of Revenue who vide order dated 29.9.1992 reviewed and recalled the order of his predecessor Mr. S.M. Nasim, Member (colonies) Board of Revenue by holding that in view of the petitioners of the lease-deed continuous possession of the petitioner on the lease land for over 100 years and the petitioner being the only living grand son of Shahzada Nadir was entitled for proprietary rights of remaining granted land i,e, 169(1/2) acres. Copy of his decision is Annex G.
Against the said order an application under Section 12(2) of CPC and review petitions were filed by some allegedly interested persons, which were finally dismissed by the full Court, Board of Revenue Punjab, Lahore on 18.3.2004. Copy of the said decision in Annexure K and at present no lis against the order of Senior Member Board of Revenue Punjab Lahore dated 29.9.1992 which has attained finality for all intents and purposes of law is pending. However, notwithstanding the aforesaid order and instructions of the Member Board of Revenue the Government of Punjab on one pretext or the other did not implement the said order by granting proprietary rights to the petitioner which has constrained the petitioner to file this petition with the prayer that the respondents may be directed to implement, execute order dated 29.9.1992 made by Member Board of Revenue/Colonies, (copy Annex G) in letter and spirit in the revenue record and confer proprietary rights of the land in favour of the petitioner with effect from year 1956 on a reasonable price as prevailed in the said area under the schedule of rates issued by the Government of the Punjab for such lands.
4. The respondents contested this petition and submitted their comments and as well as report to the effect that State land measuring 182 Acres situated in the revenue estate of Kalas Mari Tehsil and District Lahore was granted to late Shahzada Nadir son of Shah Shuja-ul-Mulk, the king of Kabul and grand son of Aala Hazrat Ahmad Shah in the year 1891 subject to the following conditions:-- "(i) The lease was for the term of Shahzada Nadir's life time and one generation of his legitimate male heirs and "Revenue Free".
(ii) If during the term of lease or its expiration, the Government shall resolve to sell the proprietary rights in the said land, the first offer thereof shall be made to the lessee, at a reasonable price to be fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have accepted to pay the land revenue assessed upon the said land by the proper officers of the Government. Provided further that the lessee shall have no right to such offer if the said lands are required for public purpose."
5. That the original lessee Shahzada Nadir expired on 25.12.1995 leaving behind the following five sons:--
1. Shahzada Hamdam
2. Shahzada Muazam,
3. Shahzada Muhammad Umar,
4. Shahzada Muhammad Akbar,
5. Shahzada Ahmad Mukhtar, The fifth son Shahzada Muhammad Akbar was the last who died in India on 7.12.1956 and thus the first generation of Shahzada Nadir Shah ended in the year 1956. The deceased lessee/lessees could not avail concession of acquiring proprietary rights in the lease in the tenancy during currency of lease or at the expiry of the said lease. In the year 1962 through a petition one Shahzada Yaqoob a descendent of Shahzada Nadir (the original grantee) requested for extension of the lease and the Board of Revenue Punjab vide order dated 13.5.1963 ordered that the lease could not be extended in favour of a third male generation of the grantee and also ordered that the same be resumed from the sitting lessee. Aggrieved by the said resumption order Mr. S.A.
Durani the present petitioner filed an application before the then Member (Colonies) Board of Revenue Punjab, requesting for grant of proprietary rights in respect of 182 Acres of State grant land and the said Member (Colonies) vide order dated 16.6.1983 in ROR No, 2192 of 1982 decided that the lease according to the terms was to subsist only up to one generation of Shahzada Nadir and after that came to an end and the petitioner being the third generation was not entitled to get the proprietary rights under the terms of lease. However, as a special dispensation keeping in view the long occupation on the land ordered to confer proprietary rights up to 12 Acres and had further ordered for resumption of the remaining land. Mr. S.A. Durrani the present petitioner then filed a review against the said order dated 16.6.1983 in the Court of Senior Member Board of Revenue which was decided in Review No, 131 of 1992 with the observation that the Government would resolve to sell proprietary rights after lifting up the ban imposed by the Chief Minister Punjab regarding sale of State land through private treaty. It had also been couched in the comments that the petitioner alongwith other descendents had dragged the Government in Writ Petitions Nos, 15184 of 1993, 17777 of 1996, ICA No, 407 of 1997 in Writ Petition No, 17777 of 1996 and Writ Petition No, 7305 of 1995 but the petitioner could not succeed to establish his claim and that he is not legally entitled for the grant of proprietary rights being third generation as the original lease term was only confined to first generation which expired in the year 1956.
6. During course of proceedings some applicants i,e, Ahmad Shujah, Nadeem Durani, Muhammad Yousaf Durani and Muzammil Durani filed C.M. No, 479 of 2005 and Shahzad Muhammad Zar Bakhat filed C.M. No, 696 of 2005 under Order I Rule 10 CPC read with. Section 151 CPC for being impleaded as parties while claiming as successors in interest of late Shahzada Nadir. They alleged that they were necessary and proper party of the subject matter of the present writ petition and the petitioner had filed the petition by intentionally omitting them to acquire the entire rights under the lease to their exclusion.
7. The petitioner had resisted their said applications with the submission that the order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan Member Colonies clearly held the petitioner to be the sole legal heir qualified to acquire rights under the lease and the same had attained finality against the applicants and until the said finding was set aside, they had no status or claim to be treated as necessary party to be impleaded under Order I Rule 10 CPC. The two applications C.M.
No, 479/05 and C.M. No, 696/05 need to be addressed and adjudicated first.
8. It is admitted by the applicants that there is a finding against them i,e, vide order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan Member (Colonies) Board of Revenue Punjab, S.A. Durani the present writ petitioner has been held to be the only living and son of the original lessee Shahzada Nadir entitled to the grant of proprietary rights of the disputed land under the instrument of lease dated 30.11.1891. They have further indicated that they had sought to have the same set-aside by filing of the Review Petition Before the Board of Revenue Review No, 131 of 1992 and Section 12(2)
CPC application in the Review No, 131 of 1992. The same had admittedly been dismissed vide order dated 18.4.2004 by the Full Board. It has also been stated that the applicant had further sought to have the same set-aside by filing a further Review Application before the Board of Revenue, which is statedly pending. While it is doubtful that such a review application lies under the law and the same has not, to this date, been brought on the record. Respondents in their report and parawise comments had also indicated that some kind of proceedings is pending before the Full Board but when confronted with the order dated 18.3.2004 were unable to indicate what further proceedings remained that could nullify the findings given in order dated 29.9.1992 by Dr. Imtiaz Ahmad Khan Member (Colonies). Even if some proceedings are pending before the Board of Revenue, the Board itself has not suspended the order dated 29.9.1992 which still holds the filed and remains final and binding qua the applicants. The applicants seem to be urging their case merely as being descendents of Shahzada Nadir, what they failed to recognized is that they have to pass the requirement of the lease deed itself in which they have failed miserably. The determination that they possess the qualifications under the lease deed for grant of proprietary rights was properly required to be adjudicated at the level of Board of Revenue and as noted already the applicants had availed their remedy against the same and had failed to convince the Board of Revenue about the merits of their case that they were descendents of Shahzada Nadir and a joint lessee of the land alongwith the present petitioner. The order, dated 29.9.1992 passed by the Member Colonies had, therefore, attained finality against them.
9. It is established proposition of law that before any person can be impleaded as a party in the proceedings he has to show that he is either necessary or proper party. The necessary and proper party had been defined in several judgments of this Hon'ble Court as well as that of Hon'ble Supreme Court of Pakistan that it is in relation to the subject-matter of the suit or for that matter a constitutional petition to which CPC is applicable in view of the law declared by the Hon'ble Supreme Court of Pakistan in Hussain Bakhsh us. Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1). The subject-matter of the present writ petition is implementation of order dated 29.9.1992 passed in ROR No, 131 of 1992 by the learned Member Board of Revenue Punjab and in relation to the subject matter the applicants are neither proper nor necessary party as their presence is not necessary for the adjudication of the point in issue in the writ petition itself. The applicants claim to be successors in interest of Shahzada Nadir and during course of arguments their learned counsel has referred to "revised pedigree table of the families mentioned in the Revised Edition of Chiefs and Families of Note in the Punjab in which Pedigree table of Sardar Muhammad Hamdam Saddozai, Shah Shuja-ul-Mulk has been appended at page 58. The applicants claim to be the descendents of Imtiaz Jan born in the year 1910 and Niaz Ahmad Jan born in the year 1940 and Yaqoob born the year 1923. This pedigree table does not link the applicants with their said three alleged predecessors as their off-springs have not been mentioned in the same. Furthermore, no proof of revenue record regarding Shajra N asab of Imtiaz Jan, Niaz Ahmad Jan and Yaqoob has been brought on the file to show the applicants' link with Imtiaz Jan, Niaz Ahmad Jan and Yaqoob mentioned in the pedigree table given on page 58. The applicants in their review petition before the Board of Revenue had failed to establish their claim that they were the successors-in-interest of Shahzada Nadir and secondly the order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan holding the petitioner to be the only living grand-son of Shahzada Nadir has attained finality, thus there is no force in the contentions of the applicants and as such their applications are dismissed.
10. Regarding the main petition it is submitted on behalf of the petitioner that the lease deed dated 20.11.1891 in part V thereto in sub clause (1) provides that upon expiry of the said lease the Government shall necessarily resolve to sell the land with first right of refusal to the petitioner at the reasonable price fixed and that the words "expiry of lease" referred to expiry of the revenue free period and since that event happened in 1956 the petitioner may be granted proprietary rights upon payment at the rates existing in the year 1956. Further in support of conferment of proprietary rights the petitioner has also placed reliance on a letter dated 28.9.1877 written by under Secretary Government of Punjab to the Secretary Financial Commission Punjab which expresses that hopes may be held out to the Shahzada that if they improve the estate the proprietary rights will be granted and that further on a letter dated 10.11.1890 written by Revenue Secretary Government of the Punjab to the Financial Commission of Punjab that proprietary rights would be conducted if in that time they improve the estate in a proper fashion. The case of the petitioner is that since the land had been improved, brought under cultivation at huge expense and with hard labour the term of the lease having been fulfilled he has become entitled to the grant of proprietary rights.
11. The learned Addl. Advocate General while appearing on behalf of the respondents has in support of the reply and comments had stated that the lease of the disputed land was for the term of Shahzada Nadir's life time and one generation of his legitimate male heirs and was revenue free and if during the term of said lease the Government desired to sell the proprietary rights in the suit land, the first offer thereof was to be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the proprietary rights would not be transferred to the lessee unless and until he had paid the land revenue assessed on the said land by the proper officers of the Government and that the lessee would have no right to such offer if the land was required for any public purpose and that the original lessee Shahzada Nadir died on 25.12.1895 and his last son Shahzada Muhammad Akbar died in India on 7.12.1956 and thus the first generation of Shahzada Nadir came to an end in the year 1956 and the deceased lessee or lessees could not avail the concession of acquiring proprietary rights in the tenancy during currency of the lease or at its expiry and that the lease in favour of the petitioner no longer subsisted to entitle him to the grant of proprietary rights at a reasonable price. The perusal of the instrument of lease dated 30.11.1891 executed between the Secretary for State of India and Shahzada Nadir son of Shah Shuja-ul-Mulk of Kabul show that it is self contained law and its analysis can be made as under:--
(a) That the term of lease was for life time of Shahzada Nazir and one generation of his legitimate male heirs, "Revenue Free" (Clause 1 part 1 of the deed). It is obvious that the clause in question is primarily meant for qualifying the specific period during which it would be retained by the original lessee, his legitimate male heirs and one generation of the said heirs as "Revenue Free". After the expiry of the aforesaid period an exercise was to be conducted. It was optional on the part of Government to conduct an exercise, during the currency of the aforesaid clause or at its expiration, to offer the proprietary rights to the lessee under Clause 2 Part V of the lease deed.
(b) That the Government shall resolve to sell the proprietary rights during the term of the lease or at its expiration to the lessee (Clause 2 Part V of the deed). In the said clause of the instrument it has been held that "if during the term of the lease or at its expiration, the GOVERNMENT SHALL RESOLVE to sell the proprietary rights in the said land during the term of the lease or at its expiry.
This is lent support by the letter of Mr. C.L. Trupper, under Secretary, Govt. of the Punjab to the Secretary, Financial Commissioner Punjab dated 28th August 1877, which ways "Hopes may be held out to Shahzadas that if they improve the Estate proprietary rights will be granted". Similarly Mr. R.G.
Thomson, Offg. Revenue Secretary Government, of the Punjab to the Financial Commissioner, Punjab dated 10th November, 1890, proprietary rights would be granted, if in that time they improve the Estate in a proper fashion. It appears that the Hopes were held out by using the word "SHALL" in the lease deed instead of the word "MAY". It is therefore, obvious that the Government is under obligation to sell this land and first offer would be given to the lessee. It is in the light and spirit of the referred Clause that proprietary rights are claimed by the petitioners.
(c) That the said land could only be resumed if required for public purpose, after giving lessee six month notice, on payment of compensation, during the term of the lease. There is absolutely no other clause under which the land could be resumed. (Clause 3 of part III of the deed).
12. When the petitioner's petition for grant of proprietary rights was partially accepted up to 12 acres of land and was rejected to the extent of remaining 169 acers of land vide order dated 16.6.1983 by S.M. Nasim, Member Colonies Board of Revenue Punjab, the petitioner being aggrieved approached the States and Frontier Region Government of Pakistan Islamabad, the competent body in respect of the disputed land after the partition of the subcontinent which consulted the Law and Justice Division Government of Pakistan and the said agency of the Federal Government came to the conclusion that the relevant provision under which the proprietary rights should have been given was Clause 2 Part V of the deed and it was in their recommendations that the Government was obliged to grant proprietary rights under the said clause. Thereafter the petitioner filed review petition (Review No, 131/1992) requesting to review and amend the order dated 16.6.1983 in view of Clause 2 Part V of the lease deed and prayed for the grant of proprietary rights of the remaining land i,e, 169 Acres. The Advocate-General was consulted and he had opined in his Letter No, 1469/AG dated 27.9.1992 that a plain reading of the lease form reveals that:--
(a) Clause 1 of Part-I relates to the period of the lease for which it is to be "Free of Revenue".
(b) Clauses 2 and 3 of the Part V read with the future i,e, sale or renewal/extension of lease to the lessee on the expiry of period mentioned in (a) above."
The Advocate-General had further opined that the Government did not take any action with regard to the resumption of land in 1956 when the male heir of the first generation died and instead mutations of inheritance were sanctioned in favour of descendent and further the land was not required for any public purpose so it was an implied renewal and extension of the lease on the payment of land revenue. The Advocate-General observed that as the petitioner's family was in continuous possession of this land for over 100 years it would be unlawful to eject him under the terms and conditions given in the lease form. He also observed that initial lease was granted by Secretary of State for India in Council and its successor was the State and Frontier Region Division Government of Pakistan. Therefore, their instructions contained in letter dated 6.8.2001 to decide the case in the light of the provisions contained in Clauses 2 and 3 of Part. V of the lease deed were to be kept in view. After going through the terms of lease deed dated 30.11.1891, advice of the State and Frontier Region Division and view of the Advocate-General Punjab Lahore dated 27.6.1992 Dr. Imtiaz Ahmad Khan, Member Colonies, Board of Revenue vide his order dated 29.9.1992 observed as under:-- "It is evident from the record that the petitioner is in continuous possession one way or the other and under provisions of Clause 3 of Part V of the lease deed, if Government is not in need of the disputed land for any public purpose, the disposal of the land at the expiry of the lease shall be made according to the provision of Clause 2 of Part V of the lease deed which reads as under:-- "That if during the term of this lease or its expiration the Government shall resolve to sell the proprietary rights in the said lands, the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner of Lahore and to be accepted or refused by the lessee within the time named by the Government. Provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have consented to pay the land revenue assessed upon the said land by the proper officers of Government. Provided further that the lease shall have no right to such offer if the said land be required for any public purpose."
In this case the petitioner being the only living grand son of the original lessee Shahzada Nadir, is entitled to the proprietary rights of the disputed land under the instrument of lease dated 30.11.1891.
If after lifting/relaxation of temporary ban by the Chief Minister, the Government resolves to sell the proprietary rights in the said land; the first offer thereof shall be made to the petitioner as per provisions of para 2 of Part V of lease deed dated 30.11.1891. However, till such time he will continue to hold the possession of the remaining land on lease on the terms and conditions to be worked out since the expiry of the first lease "Revenue Free" tenure."
13. The review order of the Member Colonies Board of Revenue dated 29.9.1992 confirms the following facts:--
(a) That the petitioner was the only living grand son of the original lessee Shahzada Nadir.
(b) That the Government did not take any action with regard to resumption of the land in 1956 when the male heir of the first generation died and instead mutations of inheritance were sanctioned in favour of the descendents which implied renewal/extension of the lease on the payment of land revenue etc. Thus the status of the petitioner as lessee of the land had been confirmed.
(c) That the land was not required by the Government for any public purpose.
(d) Ministry of State and Frontier Region, Government of Pakistan Islamabad, Law Justice Division Government of Pakistan, the concerned Agencies of the Federal Government came to the conclusion that the Government was obliged to grant proprietary rights under the instrument of lease.
(e) The Advocate-General Punjab in his letter also supported the grant of proprietary rights to the petitioner.
(f) That during the term of the lease or at its expiration the Government shall resolve to sell the proprietary rights in the said lands the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner of Lahore and to be accepted or refused by the lessee within the time named by the Government and by the use of expression "SHALL" in the lease deed the Government is bound to sell the land to the lessee in accordance with the terms of the lease deed.
(g) That the petitioner being the only living grand son of the original lessee Shahzada Nadir is entitled to the proprietary rights of the disputed land under the instrument of lease deed dated 30.11.1891.
Against the said order dated 29.9.1992 of Dr. Imtiaz Ahmad Khan, Member Colonies, Board of Revenue, an application under Section 12(2) CPC in Review No, 131 of 1992 and Review No, 30 of 1994 had been filed before the Full Board, Board of Revenue Punjab which was dismissed vide order dated 18.3.2004. Thus the order of Dr. Imtiaz Ahmad Khan Member Colonies Board of Revenue Punjab dated 29.9.1992 has attained finality. The reply filed by the respondents strangely is against their own record and particularly seems to have not noticed the order of Member Colonies dated 29.9.1992 or even the order of the Full Board, Board of Revenue dated 18.3.2004. The respondents have sought to argue that the lease expired with the first generation of Shahzada Nadir whereas the order dated 29.9.1992 by Dr. Imtiaz Ahmad Khan, Member Colonies had already settled this issue. When examined, the said order has no infirmity in it as well. It has been further submitted on behalf of the respondents that various proceedings before this have been undertaken in regard to the matter at hand but when examined none of the petitions were found to be seeking grant of proprietary rights. The respondents even failed to specifically indicate what precise proceedings were pending before them after the order of the Board dated 18.3.2004. It was also asserted that the matter may be referred back to the respondents for determination in accordance with law. It is however, clear from the record that after the order of the Member Colonies dated 29.9.1992 which has attained finality, there is no case for remand. Even otherwise the petitioner has been contesting the matter for several decades before the respondents and the matter has been delayed enough and needs to be resolved finally.
14. In the present case the principle of estoppel is also fully applicable. Firstly, the Government of the Punjab or for that matter the Board of Revenue did not even challenge the order of the Member Board of Revenue dated 29.9.1992 in any Court for 13 long years and, therefore, shall be deemed to be estopped to raise the objection that judicial order of the then Senior Member Board of Revenue Punjab does not entail to confer the proprietary rights. Secondly, it has also been stated in the report and parawise comments filed by the Government of the Punjab in Writ Petition No, 17777 of 1996 which bears signatures of Secretary Colonies, Board of Revenue Punjab and Member Colonies Board of Revenue Punjab wherein the title of the present petitioner in respect of the same land to the exclusion of any other so called claimant was accepted. Paragraph V of the said comments is reproduced as under:-- "The Respondent No, 1 (present petitioner) who is the only living grandson of Shahzada Nadir and falls in the second generation, acquired the status of the lessee in terms of Clause 2 Part V of the lease-deed when his father Shahzada Muhammad Hamdam, the eldest son of Shahzada Nadir, died in the year 1939. It was only the Respondent No, 1 who applied and came forward himself to get the proprietary rights of the entire land, under Clause 2 Part V of the lease deed as "The Lessee.
The Senior Member (Colonies Board of Revenue, Punjab vide his judgment dated 16.6.1983 ordered that the proprietary rights up to 12 (1/2) acres be given to Mr. S.A. Durrani. The Mutation No, 457 dated 24.6.1984 for the land measuring 122 Kanals, 8 Marlas, comprising Khasra Nos, 385, to 390, 399, 400 and 406, situated in Revenue Estate Kalas Mari Tehsil Cantt., Lahore was sanctioned as reward in favour of the Respondent No, 1. (S.A. Durrani) as he and his family developed the land since the last 100 years and that the remaining land was to be taken away from him. Aggrieved by the order of Mr. S.M. Nasim Senior Member Board of Revenue, Punjab, dated 16.6.1983 for taking away the remaining land, the Respondent No, 1 approached the Ministry of States and Frontier Region, who are the lessors in respect of this property. This Ministry referred the matter to the Ministry of Law and Justice Division Government of Pakistan for scrutiny from the point of view of the prescribed law on the subject. Finally both the Ministers in conformity with each other held that the Government was under obligation to grant the proprietary rights in the present case. Dr. Imtiaz Ahmad, the then senior Member Board of Revenue (Colonies) further obtained the opinion of the Law Department Punjab and the Advocate-General, Punjab who confirmed the views given by the Federal Government on the subject of grant of proprietary rights to the Respondent No, 1 in terms of Clause 2 Part V of the lease deed. After fully satisfying himself with the scrutiny of his Department on the executive side, he transferred the case to the Judicial wing of the Board of Revenue and finally, in his judgment dated 29.9.1992, held that the Respondent No, 1 (S.A. Durrani) is the only living grandson of Shahzada Nadir who is entitled to acquire the proprietary rights of the remaining land under the prescribed law on the subject. However he added that the said proprietary rights would be transferred after a temporary/relaxable ban imposed by the Chief Minister, Punjab, on the sale state-land in the province is lifted/relaxed. He further observed that the Respondent No, 1 (S.A.
Durrani) will continue to hold the land in question as on lease with effect from the termination or the 'Revenue Free' tenure of the first lease money in 1956, till the proprietary rights are conferred.
The Deputy Commissioner was accordingly directed to recover the lease money from the entire period of forty years in this regard. The lease money has been paid by the Respondent No, 1 from 1956 to date."
15. In view of the stance of the Government of the Punjab and Board of Revenue, as mentioned above, the respondents are now estopped to challenge the claim of the petitioner for grant of proprietary rights of the lease land.
16. After examination of Clause 1 of Part V of the lease dated 30.11.1891 and the letter dated 28.9.1877 it is clear that after expiry of the first generation of Shahzada Nadir the Government of India now Respondent No, 1 were under obligation to sell the land with first right of refusal to the petitioner.
The sale under the lease instrument was to be at a reasonable price, which is distinct from market price. Further as the order of the Member Colonies dated 29.9.1992 has attained finality and the said order clearly found that the petitioner being the only living grandson of the original lessee Shahzada Nadir is entitled to the proprietary rights of the subject land under the instrument dated 30.11.1891. No reason is available on the record as to why the same may not be implemented now.
17. A legal question may arise that whether the Constitutional jurisdiction can be availed in order to enforce a right for conferment of the proprietary rights duly recognized in a judicial order of the Member Board of Revenue, the answer to this is furnished by Muhammad lqbal Shah vs. Board of Revenue (1995 CLC 583) in which it had been observed as under:-- "Provincial Government having promised to transfer State land as awarded to the petitioner in the year 1971-72 could not now turn around and withdraw the same as valuable rights had accrued to the petitioner. Subsequent order of the Board of Revenue to deprive the petitioner of the benefit of reward was set-aside and direction was issued to it to complete the process of transfer of the land to the petitioner within three months".
The reported judgment was upheld by the Hon'ble Supreme Court of Pakistan in C.A. No, 1040/95 and appeal filed by Member Board of Revenue was dismissed with the following observations.
"There is abundant material on the record to support the contention of Respondent No, 1 that he was recommended for allotment by the Governor/MLA Zone-C, Lahore and in pursuance to that recommendation, Board of Revenue had issued special directions for allotment of land to him. In these circumstances, the learned Judge rightly held that the order passed by the Board of Revenue on 6.6.1993 was wholly without jurisdiction."
18. The present case of the petitioner rests on a higher pedestal than the claim of the petitioner in the said citation inasmuch as the right of conferment of proprietary right was accrued to in the original lease deed of 30.11.1891 and subsequently given due recognition in the judicial order of the Board of Revenue.
19. The case of the petitioner can be examined yet from another point of view that obligation arisen out of lease deed dated 30.11.1891 duly recognized in a judicial order is enforceable in a Constitutional jurisdiction under Article 199 of the Constitution and the reliance can be placed on Government of Pakistan through Collecorate of Customs and another vs. Amar Mehmood (1999 SCM R 2268), Muhammad Afzal vs. Shahzad Asghar Dar and another (2003 SCM R 280) and Messrs Ramna Pipe and General, Mills (Pvt.) Ltd. vs. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others (2004 SCM R 1274).
20.In view of the above discussion the petitioner has fully made out his case for implementation of order dated 29.9.1992 (Annex G) and grant of proprietary rights in respect of the lease land in pursuance of the said order.
21. Now a pertinent question arises as to what reasonable price can be charged from the petitioner for grant of proprietary rights in the lease land. The petitioner claims that reasonable price prevailing in the year 1956 under the schedule of rights issued by the Government of the Punjab for such land be charged from him. However, the first judicial, order which recognized the right of petitioner for grant of proprietary rights was passed by Dr. Imtiaz Ahmad Khan, Member (Colonies)
Board of Revenue on 29.9.1992, therefore, it will be fair that the petitioner be charged the price prevailing in the year 1992 under the schedule of rates issued by the Government of the Punjab for such lands for grant of proprietary rights in the lease land.
22. In view of the above discussion and findings I accept this petition and direct the respondents to implement the order dated 29.9.1992 (Annex G) passed by Dr. Imtiaz Ahmad Khan Member (Colonies) Board of Revenue, Punjab, and confer proprietary rights of the land in favour of the petitioner w,e,f, the year 1992 on payment of reasonable price that prevailed in the year 1992 under the schedule of rates issued by the Government of the Punjab for such lands. The petitioner will deposit the said reasonable price with the respondent within three months and from the date of its deposit the respondents shall confer proprietary rights in favour of the petitioner within one month.